Tribune Washington Bureau
Posted with permission from Tribune Content Agency

LAKEWOOD, Colo. — "Sorry, guys, I don't make cakes for same-sex weddings."

With that blunt comment, Jack Phillips, a baker who designs custom wedding cakes, sent two men out the door and set off a legal battle between religious liberty and gay rights that comes before the U.S. Supreme Court this fall.

The Trump administration last week sided with Phillips and argued that decorating a wedding cake is a type of "expressive conduct," similar to burning a flag or marching in a parade. If so, they say, the Constitution's free speech protection gives the baker, a devout Christian, the right to refuse to participate in the marriage celebration of two men.

But Colorado has barred Phillips from making any more wedding cakes because he refuses to abide by its civil rights law. Since 2008, it has required public businesses to serve all customers equally and without regard to their sexual orientation. The state, allied with the American Civil Liberties Union, says this case is about discrimination, not the religious liberty of a shop owner.

Phillips' shop, Masterpiece Cakeshop, is full of brightly colored cookies, cupcakes and birthday cakes. These days, it attracts customers from afar who make a special trip to show their support. "Our prayers are with you," one woman said as she ordered cookies recently.

Phillips, 61, recalled growing up in Lakewood when it was mostly trees, fields and two-lane roads. His bake shop prospered as the city grew into a busy, commercial suburb of Denver. By 2012, he had 10 employees. Then and now, Phillips says, he does not refuse to serve customers for being gay.

"I will serve anyone who comes in," he said. "And I think I can make friends with them."

But to Charlie Craig and Dave Mullins, Masterpiece was far from friendly when they stopped by in the summer of 2012.

Craig, 37, grew up in a small town in Wyoming and came to Denver to enjoy the freedom of the big city. He met Mullins through a mutual friend, and they dated for several years. They were planning to be married in Provincetown, Mass. — where same-sex marriages had been legal since 2003 — and then return to Denver for a celebration with their family and friends. A reception planner recommended Masterpiece.

"We went in with a bunch of ideas," said Mullins, 33. "But (Phillips) came in, asked who the cake was for and then he said he wouldn't make a cake for us. We were shocked and mortified and got up and left."

It all took less than 30 seconds. "I admit we were very emotional. We hadn't gone through anything like this. We were embarrassed, and we felt degraded," Mullins said.

Craig says Phillips "started to explain he had gay friends. And he would sell us cookies or cupcakes. But we left."

Phillips recalls their anger. "They swore at me, flipped me off and stormed out," he said.

The conflict took off on social media. "We went home and vented online to tell our friends what happened," Craig said.

Phillips said his phone started ringing and didn't stop for several days. "They would ask, 'Are you the baker who ...?' And then they would call me names and swear. It was very hateful," he said.

Phillips said he endured death threats, garbage thrown at his shop and thousands of negative messages on his shop's website.

Mullins and Craig were also disturbed by the number of ugly, mean comments they received online.

The couple filed a discrimination complaint with the state civil rights commission. "We didn't want anyone else to have to go through this," Craig said.

Federal law does not forbid employers or public businesses from discriminating against people because of their sexual orientation. But Colorado and 20 states adopted anti-discrimination laws to protect gays and lesbians. On the national map, these laws mirror the divide between blue and red states. The broader civil rights laws apply mostly along the East Coast from Maryland to Maine, in the upper Midwest and on the West Coast. No state in the South, on the Great Plains or in the Mountain region has such a law, except for Colorado, Nevada and New Mexico.

The Colorado law says no "place of public accommodations," such as a hotel, restaurant or retail store, may deny people "the full and equal enjoyment of the goods (or) services ... because of disability, race, creed, color, sex, sexual orientation, marital status, national origin or ancestry." In response to the complaint from Craig and Mullins, an administrative judge decided Phillips violated the law by refusing to provide them equal service. The seven-member Colorado Civil Rights Commission and a state appeals court agreed. Phillips "does not convey a message supporting same-sex marriages merely by abiding by the law," the state court concluded.

Faced with the remarkable rise of the gay rights movement, conservative Christians have begun to push back against that argument, saying the nation's tradition of religious liberty should shield them from being forced to endorse or participate in any way in a same-sex marriage.

"Tolerance should be a two-way street," said Kristen Waggoner, lawyer for the Arizona-based Alliance Defending Freedom who represents Phillips. "The First Amendment protects Jack's right to create artistic expression that is consistent with his core convictions."

Louise Melling, deputy director of the ACLU, warned such an exemption would create "a constitutional right to discriminate founded on your religion. What are the limits to that?"

Supporters of Colorado's law worry about how a religious exemption could be applied. Could a landlord turn away unmarried couples? Would a Muslim baker be permitted to refuse service to Jews or Christians, or vice versa?

Until this year, religious rights claims had little success in the courts. Lawyers for Alliance Defending Freedom pressed similar lawsuits on behalf of a photographer in New Mexico and a florist from Washington state. Both lost in state courts. And three years ago, the Supreme Court declined to hear a 1st Amendment claim from the photographer who refused to shoot photos of a commitment ceremony for two women.

In January, the high court was due to act on the appeal from Phillips. At the time, the eight justices were waiting for President Donald Trump to announce his nominee to fill the ninth seat. His choice, Justice Neil M. Gorsuch, is a Coloradan, a conservative and a champion of religious liberty. Gorsuch arrived in April, and on the last day of the term, the justices announced they would hear the case of Masterpiece Cakeshop v. Colorado.

The outcome will probably depend on Justice Anthony M. Kennedy, the 80-year-old Republican appointee who engineered the key rulings that decreed equal rights and "dignity" for gays and lesbians. When he joined the court in 1988, the justices had recently dealt a demoralizing defeat to the gay rights movement by upholding state laws that made gay sex a crime. Kennedy, however, had other ideas.

In 1996, he spoke for the court in striking down a Colorado voter initiative that denied gays and lesbians all protections from discrimination. The law was "born of animosity" and cannot stand, Kennedy said. In 2003, his opinion for a 5-4 majority struck down the sex crime laws, which he said "demean" gays and deny them the proper "respect for their private lives." And two years ago, he spoke for the 5-4 majority that upheld same-sex marriages as a constitutional right. Kennedy seriously considered retirement last year but decided to stay for at least another year.

Former clerks and others who know Kennedy say they are not sure how he will see the Colorado case. He has been a steady champion of free-speech claims. And two years ago, while upholding gay marriages, Kennedy said the "First Amendment ensures ... proper protection" for people "with the utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned."

Now the court will try to decide the scope of that "proper protection."

Its past rulings cut in different directions. At times, the court has ruled the government may not force someone by law to take action that carries a particular message. In a famous case from World War II, the justices ruled that children of Jehovah's Witnesses cannot be compelled to salute the flag at school. This 1943 ruling, in West Virginia State Board of Education v. Barnette, is seen as creating the "compelled speech" doctrine.

This rule was invoked in early disputes over gay rights. In 1995, the court ruled unanimously that the South Boston war veterans who sponsor the annual St. Patrick's Day parade could be not forced to include in their ranks a group of Irish gays and lesbians. The state's high court had said the exclusion violated the state's civil rights act, but the justices overruled that decision. They said the parade was an expressive act, and "under the First Amendment, a speaker has the autonomy to choose the content of his own message" (Hurley v. Irish-American Gays). And in 2000, the justices in a 5-4 decision overturned a New Jersey state civil rights decision and said the Boy Scouts had a right to "expressive association" that allowed them to exclude from their ranks an openly gay scoutmaster (Boy Scouts v. Dale). The lawyers for the cake maker rely heavily on these precedents.

But the court took a different tack in a case decided shortly after Chief Justice John G. Roberts Jr. joined the court. A coalition of leading law schools sued to challenge a federal law that required them to give military recruiters equal access on campus, even though the Pentagon then openly discriminated against gays and lesbians. Two lower courts agreed this policy violated their free speech rights because it forced them to engage in conduct that endorsed something they opposed — in this instance, discrimination based on sexual orientation. The high court disagreed in an opinion written by Roberts. The law "regulates conduct, not speech," he wrote in 2006. It does not "require them to say anything." It just means law schools must open their doors to military recruiters on an equal basis, he said (Rumsfeld v. FAIR).

The Colorado courts cited this decision and concluded Phillips was not being required to endorse same-sex marriage, but rather to open his doors and bake cakes on an equal basis.

Phillips insisted that designing a custom cake for two men would cross a line for him because the Bible speaks of marriage as between a man and a woman. "I shouldn't be forced to create a cake that goes against my faith," he said.

He said he has refused to make cakes with a Halloween theme because it involves witchcraft as well as cakes with an anti-American theme. He avoids any promotion of alcohol. Once, he said, he turned away a man who wanted to celebrate his impending divorce with half of a cake, because the idea was hurtful to the woman who was being divorced.

Mullins and Craig counter that it was certainly hurtful to turn them away, and they dispute their case involves free expression.

"We didn't have a chance to talk about the details of a cake or a message. We were turned away," Mullins said.

"Once he saw who we were," Craig added.